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The State of Western Australia v. Yeates - (22 Jan 2019)

A pre-sentence order cannot be made if, at the time it is made, a sentence of immediate imprisonment is the only appropriate sentencing option


Present is a State appeal against the imposition of a pre-sentence order. The appeal is brought pursuant to Section 24(1)(a) of the Criminal Appeals Act, 2004 which enables the State to appeal against any order made as a result of a conviction. The Respondent was charged on indictment with three offences. Counts 1 and 3 alleged that on 14 May 2016, the Respondent had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to Section 6(1)(a) of the Misuse of Drugs Act 1981. Count 2 alleged that, the Respondent was in possession of a sum of money that was reasonably suspected to have been unlawfully obtained, contrary to Section 417(1) of the Criminal Code. On 15 March 2018, the Respondent pleaded guilty as charged and was duly convicted of the offences. On 18 May 2018, it was ordered that, the Respondent be placed on a pre-sentence order for a period of 6 months with supervision and program requirements (the pre-sentence order).

The single ground of appeal relied upon by the State, for which leave was granted on 8 June 2018, alleged that, her Honour erred in imposing a pre-sentence order because a sentence of immediate imprisonment was inevitable, given: (a) the seriousness of the offences; (b) the standards of sentencing customarily observed; (c) the need for personal and general deterrence. Question involved in present matter is whether sentencing judge erred in considering term of immediate imprisonment might not be imposed

A pre-sentence order is not a sentence in itself. It is an order made as a result of a conviction, from which the State has a right of appeal. Section 33A(3) of the Sentencing Act, 1995 provides that, a pre-sentence order may be made where the sentencing judge considers, in other words is of the opinion, that: (a) the seriousness of the offences warrant the imposition of a term of immediate imprisonment; (b) the order would allow an offender to address his or her criminal behaviour and any factors which contribute to that behaviour; and (c) if the offender were to comply with the order, the court might not impose a term of immediate imprisonment for the offences. A pre-sentence order cannot be made if, at the time it is made, a sentence of immediate imprisonment is and will remain the only appropriate sentencing option even if the Respondent were to comply with the pre-sentence order. If that were so, the third condition for the making of a pre-sentence order, set out in [30](c) above, would not be satisfied.

The incentives, financial and otherwise, to participate in the distribution of illicit drugs must be counterbalanced by a clear and certain understanding that such involvement will ordinarily, as a matter of fact, result in a penalty of immediate imprisonment. Because of the need for general deterrence, matters personal to an offender ordinarily have less weight.

The offending occurred in the context of the Respondent having been engaged in the production of cannabis for a period of two years prior to his arrest. The offending was no isolated aberration. It is also clear that, the Respondent was involved in all facets of the production of cannabis and that he regarded himself as capable of producing 'good quality' material.

As to the Respondent's rehabilitation, he has prior relevant convictions for growing and supplying cannabis and, until recently, he saw little harm in its production, possession and use. It is to be hoped that, the Respondent will be rehabilitated, but even if the Respondent is able to demonstrate that he has been rehabilitated, given the seriousness of the offending, this factor, even in combination with other factors personal to him and his pleas of guilty, cannot prevail to the point where a suspended term of imprisonment may be imposed.

In view of circumstances of the Respondent's offending including those personal to him, the successful completion of the pre-sentence order, combined with other mitigating factors, was not capable of justifying the imposition of a penalty other than immediate imprisonment. It was not open to the sentencing judge to form the opinion that, if the Respondent complied with the presentence order, immediate imprisonment might not be imposed. The ground of appeal was established. Implied error was demonstrated. The pre-sentence order was set aside and the matter was remitted to the District Court for sentence by another judge.


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